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James Cirrone

The ‘Exception’: Five US States to Vote on Vestige of Slavery

The Thirteenth Amendment of the US Constitution abolished slavery and involuntary servitude, with one exception: punishing people convicted of crimes. 

Curtis Ray Davis II fit that exception when he was found guilty of second-degree murder in 1992. For the majority of his more than 25 years at the Louisiana State Penitentiary, built on the grounds of the Angola slave plantation, he was forced to work for just four cents an hour. 

“We were in the Deep South… picking cotton, picking okra, peas, pecans, shucking corn, all at the point of a gun,” said Davis, now 53 and an activist for prisoners’ rights and author of the book Slave State. 

On Nov. 8, five states -- Louisiana, Alabama, Oregon, Vermont and Tennessee -- will vote on ballot initiatives to end this vestige of slavery by altering the language in their constitutions. In all, the constitutions of about 20 states still mirror the Thirteenth Amendment, which reads:

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” 

The upcoming ballot initiatives, proponents argue, are important on several levels. The first is the explicit elimination of language that allows for any exception to the abolition of slavery or involuntary servitude, a change activists say is just and long overdue.

The second is to lay the legal groundwork for fundamental reform to the issue of labor in the US prisons. Work done by inmates is usually forced, pays little to nothing and rarely offers even basic protections found outside prisons. It also has been disproportionately forced on people of color, like Davis, who is Black. Around $11 billion a year in goods and services is produced by prison labor in the US.

Passage of the amendments alone will not immediately lead to better pay or conditions. Rather, it opens the door to lawsuits that activists hope will accomplish those goals over time, state by state. After Colorado got rid of what activists call “the exception” in 2018, two inmates, Harold Mortis and Richard Lilgerose, sued Colorado Governor Jared Polis and the Department of Corrections for forced labor.

Two years later, Utah and Nebraska scrapped the exception, though Utah left a provision that allows involuntary servitude in the “otherwise lawful administration of the criminal justice system.” 

That language got the attention of constitutional lawyer Jared Carter.

“Prisoners could argue that, in order to be lawful, it should have to comply with minimum wage laws,” said Carter, a professor at Vermont Law and Graduate School.

With five more states set to decide the language in their founding documents, Carter said he sees more legal battles coming. 

“It’s going be the state supreme courts that are going to get to decide: does prison labor constitute involuntary servitude?” Carter said. “If they say yes, then [prisoners] may well have had their state constitutional rights violated.”

The fight for better wages and dignity in work is, in fact, the next stage, according to Bianca Tylek and Savannah Eldrige, both leaders at the Abolish Slavery National Network.

“They have the right to work in fair conditions. They have the right to be compensated for the work that they’re doing, because jails, prisons it is their community,” said Eldrige, the lead organizer for the network.

Hard Labor

Davis’s prison was his community for over 25 years, and like all communities, Angola had an economy. A barter economy. People traded bars of soap for cigarettes. And economies can’t survive without workers. So they worked. But Davis wouldn’t say the conditions were fair. He equated it to military boot camp “forever.” 

“I had to get out of prison,” he said.

Though he maintains his innocence, Davis ultimately pleaded guilty to a lesser charge, of principal to manslaughter, to earn his freedom. And his need to get out, he said, was largely because of what he went through at Angola.

His workday began at 4:30 a.m. with guards blowing whistles to wake the inmates. Once up, 90 inmates in his dormitory shared four urinals, six showerheads and five sinks, he said. Then from about 6:30 a.m. to 5 p.m. inmates labored in the fields — the very same ones where slaves picked cotton before the Civil War.

“We’re already a slave state. Take it from a man who served 25 years, nine months and 11 days as an involuntary servant,” Davis said.

Consciousness about “the exception” is rising, including among businesses, said Kathy Chambers, a former Democratic operative who’s running Tennessee’s Yes on 3 campaign, named for the state’s anti-slavery amendment now on the ballot.

Brown-Forman, the parent of whiskey distiller Jack Daniel’s, donated $50,000 to support Yes on 3. Additionally, four chambers of commerce — from Nashville, Chattanooga, Knoxville and Memphis — signed a letter Oct. 12 supporting the amendment.

“Nashville especially is known tourism-wise as just a welcoming place, right? Hospitality. We’re some of the nicest people in the world. It’s part of our brand,” Chambers said. “If this goes the wrong way, I think that the chamber and other businesses know this could really tarnish the brand.”

Now, the decision is in Tennessee voters’ hands.

Prisons Want Workers

But in Tennessee, as in other states, there are differing opinions about the ballot initiatives and prisons’ desire for cheap labor -- a need supported, explicitly or not, by politicians of both parties around the US. That explains the wording of Tennessee’s Amendment 3, which states: “Slavery and involuntary servitude are forever prohibited. Nothing in this section shall prohibit an inmate from working when the inmate has been duly convicted of a crime.”

Nationwide, incarcerated workers are employed in two ways. Non-industry jobs are tasks given to inmates to keep the prison running and have the lowest pay, ranging from $0.13 to $0.52 an hour on average, according to a 2022 ACLU report. Jobs in state-owned correctional industries -- making vehicle license plates, furniture or traffic signs -- pay slightly more, $0.30 to $1.30 an hour. An unanswered question is how low wages can go before being considered involuntary servitude. 

The issue is particularly fraught in Louisiana, to the point that the sponsor of Amendment 7, the ballot initiative Davis is fighting for, is now urging people to vote against it out of worry that wording of the initiative could still leave room for involuntary servitude for convicted criminals. 

The Council for a Better Louisiana, a nonprofit public policy organization, supports removing slavery and involuntary servitude from the state’s constitution but is also urging a no vote on this amendment, calling the drafted language “confusing for voters.” But Barry Erwin, the group’s president, said changing the constitution and the broader issue of prison labor are “separate.”  

“We’re not trying to ban inmates from working with this amendment,” Erwin said. “There are a lot of people in the field that want prisoners to have the opportunity to work.”

For Davis, the importance is excising the officially sanctioned remnant of servitude that he lived through. He worked many jobs at Angola, serving as a dishwasher, a chef, a janitor and a metalworker. When he began teaching math and literacy to fellow inmates, he made 20 cents an hour.

“Common sense tells you that you can’t work an American citizen for 20 cents an hour,” Davis said. “But you can if they’re categorized legally as slaves or indentured servants.”

©2022 Bloomberg L.P.

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